The Supreme Court steals center stage this week. In the case with the potential broadest day-to-day application,Iowa v. Tovar, the Court holds the Sixth Amendment is satisfied during a plea bargain if a trial court merely informs a defendant accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea. In a very welcome move the Court inCrawford v. Washingtonstrikes down the precedent set forth in Ohio v. Roberts holding that the Confrontation Clause requires cross-examination of all evidence presented in Court, including out-of-court statements. Finally, in a noncapital habeas proceeding,Baldwin v. Reese, the Court again clarifies the exhaustion / fair presentment doctrine, requiring that a petitioner must clearly present federal issues to the state court of last resort.

In the capital arena, the Sixth Circuit on remand from the Supreme Court inCone v. Bellholds, on an issue that the both the Court and panel had not previously addressed that the Tennessee's HAC aggravator is "unconstitutionally vague, and therefore, violates the Eighth Amendment," that opinion is on the "Hot List." The Third Circuit reviews the interplay of the exhaustion doctrine & the AEDPA's filing deadlines inCrews v. Hornholding that a district court shall stay federal proceedings to permit exhaustion where "an outright dismissal could jeopardize the timeliness of a collateral attack." In New York, the Court of Appeals inNew York v. Mateoreduces the Appellant's sentence to life as the state's old capital punishment scheme unduly coerced an accused to plead guilty to avoid the possibility of capital punishment. The Firth Circuit bucks the Supreme Court inMiller-El v. Dretkeholding, despite strong Court language to the contrary, denying relief on what had been considered a strong Batson claim.

Elsewhere, the Alabama courts have been quite busy. Five favorable capital case remands are noted, with numerous relief denials also set forth below. In Ex Parte West & Hardy v. Alabama remands are had as the state postconviction court improperly held the Rule 32 petitions as out of time In Borden v. Alabama a remand is ordered on an Atkins claim. In Tarver v. Alabama, likewise, a remand is ordered to address issues relating to counsel's failure to present evidence of mental retardation, as well as other matters.

The Fifth Circuit has granted a stay toYokamon Hearn out of Texas on the issue of mental retardation. A Nevada trial court granted a stay to Daryl Mack so that he could follow additional avenues of potential relief.

EXECUTION INFORMATION

Since the last edition the following people have been executed:

March

3 Marcus Cotton Texas

9 David Jay Brown Oklahoma

Pending execution dates include:

March

15-19 Lawrenc Colwwell Jr. Nevada --- volunteer

18 Brian Cherrix Virginia

19 David Clayton Hill South Carolina

23 Hung Thanh Le Oklahoma --- foreign national

30 Edward Capetillo Texas---juvenile

30 William Wickline Ohio

31 Dennis Orbe Virginia

April

13 Michael Rosales Texas

29 Anzel Jones Texas----juvenile

SUPREME COURT

Iowa v. Tovar , --- U.S. ---- (3/8/2004) The Sixth Amendment is satisfied during a plea bargain if the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.

At respondent Tovar's November 1996 arraignment for operating a motor vehicle under the influence of alcohol (OWI), in response to the trial court's questions, Tovar affirmed that he wanted to represent himself and to plead guilty. Conducting the guilty plea colloquy required by the Iowa Rules of Criminal Procedure, the court explained that, if Tovar pleaded not guilty, he would be entitled to a speedy and public jury trial where he would have the right to counsel who could help him select a jury, question and cross-examine witnesses, present evidence, and make arguments on his behalf. By pleading guilty, the court cautioned, Tovar would give up his right to a trial and his rights at that trial to be represented by counsel, to remain silent, to the presumption of innocence, and to subpoena witnesses and compel their testimony. The court then informed Tovar of the maximum and minimum penalties for an OWI conviction, and explained that, before accepting a guilty plea, the court had to assure itself that Tovar was in fact guilty of the charged offense. To that end, the court informed Tovar of the two elements of the OWI charge: The defendant must have (1) operated a motor vehicle in Iowa (2) while intoxicated. Tovar confirmed, first, that on the date in question, he was operating a motor vehicle in Iowa and, second, that he did not dispute the result of the intoxilyzer test showing his blood alcohol level exceeded the legal limit nearly twice over. The court then accepted his guilty plea and, at a hearing the next month, imposed the minimum sentence of two days in jail and a fine. In 1998, Tovar was again charged with OWI, this time as a second offense, an aggravated misdemeanor under Iowa law. Represented by counsel in that proceeding, he pleaded guilty. In 2000, Tovar was charged with third-offense OWI, a class "D" felony under Iowa law. Again represented by counsel, Tovar pleaded not guilty to the felony charge. Counsel moved to preclude use of Tovar's first (1996) OWI conviction to enhance his 2000 offense from an aggravated misdemeanor to a third-offense felony. Tovar maintained that his 1996 waiver of counsel was invalid--not fully knowing, intelligent, and voluntary--because he was never made aware by the court of the dangers and disadvantages of self-representation. The trial court denied the motion, found Tovar guilty, and sentenced him on the OWI third-offense charge. The Iowa Court of Appeals affirmed, but the Supreme Court of Iowa reversed and remanded for entry of judgment without consideration of Tovar's first OWI conviction. Holding that the colloquy preceding acceptance of Tovar's 1996 guilty plea had been constitutionally inadequate, Iowa's high court ruled, as here at issue, that two warnings not given to Tovar are essential to the "knowing and intelligent" waiver of the Sixth Amendment right to counsel at the plea stage: The defendant must be advised specifically that waiving counsel's assistance in deciding whether to plead guilty (1) entails the risk that a viable defense will be overlooked and (2) deprives him of the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty.

Held: Neither warning ordered by the Iowa Supreme Court is mandated by the Sixth Amendment. The constitutional requirement is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea. Pp. 8-15.

(a) The Sixth Amendment secures to a defendant facing incarceration the right to counsel at all "critical stages" of the criminal process, see, e.g. , Mainev. Moulton, 474 U. S. 159, 170, including a plea hearing, Whitev. Maryland, 373 U. S. 59, 60 (per curiam).Because Tovar received a two-day prison term for his first OWI conviction, he had a right to counsel both at the plea stage and at trial had he elected to contest the charge. Argersingerv. Hamlin, 407 U. S. 25, 34, 37. Although an accused may choose to forgo representation, any waiver of the right to counsel must be knowing, voluntary, and intelligent, see Johnsonv. Zerbst, 304 U. S. 458, 464. The information a defendant must possess in order to make an intelligent election depends on a range of case-specific factors, including his education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding. See Johnson, 304 U. S., at 464. Although warnings of the pitfalls of proceeding to trial uncounseled must be "rigorous[ly]" conveyed, Pattersonv. Illinois, 487 U. S. 285, 298; see Farettav. California, 422 U. S. 806, 835, a less searching or formal colloquy may suffice at earlier stages of the criminal process, 487 U. S., at 299. In Patterson,this Court described a pragmatic approach to right-to-counsel waivers, one that asks "what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance [counsel] could provide to an accused at that stage." Id., at 298. Less rigorous warnings are required pretrial because, at that stage, "the full dangers and disadvantages of self-representation ... are less substantial and more obvious to an accused than they are at trial." Id., at 299. Pp. 8-11.

(b) The Sixth Amendment does not compel the two admonitions ordered by the Iowa Supreme Court. "[T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in generalin the circumstances ... ." United StatesRuiz, 536 U. S. 622, 629. Even if the defendant lacked a full and complete appreciation of all of the consequences flowing from his waiver, the State may nevertheless prevail if it shows that the information provided to the defendant satisfied the constitutional minimum. Patterson, 487 U. S., at 294. The Iowa high court gave insufficient consideration to this Court's guiding decisions. In prescribing scripted admonitions and holding them necessary in every guilty plea instance, that court overlooked this Court's observations that the information a defendant must have to waive counsel intelligently will depend upon the particular facts and circumstances in each case, Johnson, 304 U. S., at 464. Moreover, as Tovar acknowledges, in a collateral attack on an uncounseled conviction, it is the defendant's burden to prove that he did not competently and intelligently waive his right to counsel. Tovar has never claimed that he did not fully understand the 1996 OWI charge or the range of punishment for that crime prior to pleading guilty. He has never "articulate[d] with precision" the additional information counsel could have provided, given the simplicity of the charge. See Patterson, 487 U. S., at 294. Nor does he assert that he wasunaware of his right to be counseled prior to and at his arraignment. Before this Court, he suggests only that he may have beenJohnson, 304 U. S., at 464, it is far from clear that warnings of the kind required by the Iowa Supreme Court would have enlightened Tovar's decision whether to seek counsel or to represent himself. In a case so straightforward, the two admonitions at issue might confuse or mislead a defendant more than they would inform him, i.e., the warnings might be misconstrued to convey that a meritorious defense exists or that the defendant could plead to a lesser charge, when neither prospect is a realistic one. If a defendant delays his plea in the vain hope that counsel could uncover a tenable basis for contesting or reducing the criminal charge, the prompt disposition of the case will be impeded, and the resources of either the State (if the defendant is indigent) or the defendant himself (if he is financially ineligible for appointed counsel) will be wasted. States are free to adopt by statute, rule, or decision any guides to the acceptance of an uncounseled plea they deem useful, but the Federal Constitution does not require the two admonitions here in controversy. Pp. 11-15. v. under the mistaken belief that he had a right to counsel at trial, but not if he was, instead, going to plead guilty. Given "the particular facts and circumstances surrounding [this] case,"

656 N. W. 2d 112, reversed and remanded.

Ginsburg, J.,delivered the opinion for a unanimous Court.

Crawford v. Washington , --- U.S. ---- (3/8/2004) Ohio v. Roberts is no longer good law. The Confrontation Clause requires the crucible of cross-examination be run before an out of court statement be admitted

Petitioner was tried for assault and attempted murder. The State sought to introduce a recorded statement that petitioner's wife Sylvia had made during police interrogation, as evidence that the stabbing was not in self-defense. Sylvia did not testify at trial because of Washington's marital privilege. Petitioner argued that admitting the evidence would violate his Sixth Amendment right to be "confronted with the witnesses against him." Under Ohiov. Roberts, 448 U. S. 56, that right does not bar admission of an unavailable witness's statement against a criminal defendant if the statement bears "adequate 'indicia of reliability,' " a test met when the evidence either falls within a "firmly rooted hearsay exception" or bears "particularized guarantees of trustworthiness." Id., at 66. The trial court admitted the statement on the latter ground. The State Supreme Court upheld the conviction, deeming the statement reliable because it was nearly identical to, i.e.,interlocked with, petitioner's own statement to the police, in that both were ambiguous as to whether the victim had drawn a weapon before petitioner assaulted him.

Held:The State's use of Sylvia's statement violated the Confrontation Clause because, where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. Pp. 5-33.

(a) The Confrontation Clause's text does not alone resolve this case, so this Court turns to the Clause's historical background. That history supports two principles. First, the principal evil at which the Clause was directed was the civil-law mode of criminal procedure, particularly the use of ex parteexaminations as evidence against the accused. The Clause's primary object is testimonial hearsay, and interrogations by law enforcement officers fall squarely within that class. Second, the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination. English authorities and early state cases indicate that this was the common law at the time of the founding. And the "right ... to be confronted with the witnesses against him," Amdt. 6, is most naturally read as a reference to the common-law right of confrontation, admitting only those exceptions established at the time of the founding. See Mattoxv. United States, 156 U. S. 237, 243. Pp. 5-21.

(b) This Court's decisions have generally remained faithful to the Confrontation Clause's original meaning. See, e.g., Mattox, supra.Pp. 21-23.

(c) However, the same cannot be said of the rationales of this Court's more recent decisions. See Roberts, supra,at 66 .The Robertstest departs from historical principles because it admits statements consisting of ex partetestimony upon a mere reliability finding. Pp. 24-25.

(d) The Confrontation Clause commands that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. Robertsallows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability, thus replacing the constitutionally prescribed method of assessing reliability with a wholly foreign one. Pp. 25-27.

(e) Roberts'framework is unpredictable. Whether a statement is deemed reliable depends on which factors a judge considers and how much weight he accords each of them. However, the unpardonable vice of the Robertstest is its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude. Pp. 27-30.

(f) The instant case is a self-contained demonstration of Roberts'Roberts'failure to interpret the Constitution in a way that secures its intended constraint on judicial discretion. The Constitution prescribes the procedure for determining the reliability of testimony in criminal trials, and this Court, no less than the state courts, lacks authority to replace it with one of its own devising. Pp. 30-32. unpredictable and inconsistent application. It also reveals

147 Wash. 2d 424, 54 P. 3d 656, reversed and remanded

Scalia, J., delivered the opinion of the Court, in which Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed an opinion concurring in the judgment, in which O'Connor, J., joined.

Baldwin v. Reese, --- U.S. ---- (3/2/2004) Exhaustion requires that a state court of last resort must be put on notice as to the federal nature of the claim(s) without having to look beyond the briefs before it.

Before seeking federal habeas relief, a state prisoner must exhaust available state remedies, 28 U. S. C. §2254(b)(1), giving the State the " 'opportunity to ... correct' alleged violations of its prisoners' federal rights," Duncanv. Henry, 513 U. S. 364, 365, which means he must "fairly present" his claim in each appropriate state court to alert that court to the claim's federal nature. After respondent Reese appealed his state convictions and sentences and the lower state courts denied him collateral relief, the Oregon Supreme Court denied him discretionary review. His subsequent federal habeas petition raised, inter alia, a federal constitutional ineffective-assistance-of-appellate-counsel claim. The Federal District Court held that Reese had not "fairly presented" this claim to the state courts because his state appeals court brief had not indicated that he was complaining about a federallaw violation. The Ninth Circuit reversed, finding the "fair presentation" requirement satisfied because the State Supreme Court justices had had the opportunityto read the lower court decision before deciding whether to grant discretionary review. And, had they read that opinion, they would have, or should have, realized that his claim rested upon federal law.

Held:A state prisoner ordinarily does not "fairly present" a federal claim to a state court if that court must read beyond a petition, a brief, or similar papers to find material that will alert it to the presence of such a claim. Pp. 3-6.

(a) Assuming that Reese's petition by itself did not properly alert the State Supreme Court to the federal nature of his claim, Reese failed to meet the "fair presentation" standard. To say that a petitioner "fairly presents" a federal claim when an appellate judge can discover that claim only by reading the lower court opinions is to say that those judges mustread those opinions--for otherwise they would forfeit the State's opportunity to decide the claim in the first instance. Federal habeas law does not impose such a requirement. That requirement would force state appellate judges to alter their ordinary review practices, since they do not necessarily read lower court opinions in every case. And it would impose a serious burden upon those judges with discretionary review powers, whose heavy workloads would be significantly increased if they had to read through lower court opinions or briefs in every instance. Finally, the requirement is unnecessary to avoid imposing unreasonable procedural burdens upon state prisoners who may eventually seek federal habeas. A litigant can easily indicate his claim's federal law basis in a petition or brief, for example, by citing to the federal source of law on which he relies or simply labeling the claim "federal." Pp. 3-5.

(b) This Court is not wrong to assume that Reese's petition by itselffailed to alert the State Supreme Court to his claim's federal nature. He must concede that his petition does not explicitly say that "ineffective assistance of appellate counsel" refers to a federal claim, cite any case that might have alerted the court to his claim's alleged federal nature, or even contain a factual description supporting his claim. Reese asserts that the petition nonetheless "fairly presents" a federal "ineffective assistance" claim because (1) "ineffective" is a term of art in Oregon that refers only to federal law claims, and (2) the state law standards for adjudicating state and federal "inadequate/ineffective appellate assistance" claims are identical. This Court rejects his first argument because he has not demonstrated that state law uses "ineffective assistance" as referring only to a federal law, rather than a similar state law, claim. However, Reese's second argument was not addressed by, or presented to, the Ninth Circuit, and first appeared here in Reese's merits brief. Because the issue is complex and lower court consideration would help in its resolution, the Court, without expressing any view on the issue's merits, exercises its Rule 15.2 discretion and deems the argument waived. Pp. 5-6.

282 F. 3d 1184, reversed.

Breyer, J.,delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Stevens, J., filed a dissenting opinion.

HOT LIST

Cone v. Bell , 2004 U.S. App. LEXIS 3882;2004 FED App. 0064P (6th Cir 3/1/2004) " Cone’s death sentence must be vacated because one of the statutory aggravating circumstances the jury relied upon in imposing the death sentence—that the murders were “especially heinous, atrocious, or cruel”—is unconstitutionally vague, and therefore, violates the Eighth Amendment."

At sentencing, the jurors were instructed that they could not impose the death penalty unless they unanimously found, beyond a reasonable doubt, at least one of eleven statutory aggravating factors, including whether "the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind." In a limiting instruction, the court then defined some of the terms of this aggravating factor:

"Heinous" means extremely wicked or shockingly evil.

"Atrocious" means outrageously wicked and vile.

"Cruel" means designed to inflict a high [*25] degree of pain, utter indifference to, or enjoyment of, the suffering of others, pitiless.

The jurors found that Cone's crime was "especially heinous, atrocious, or cruel." They did not add, on their verdict form, the words, "in that it involved torture or depravity of mind." However, we do not think that omitting that verbiage when announcing the verdict is of any constitutional significance.

Cone argues that the HAC aggravator is "clearly unconstitutional" based upon the holding of Godfrey v. Georgia, 446 U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980). Godfrey held that the Georgia statutory aggravator, "that the offense 'was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim,'" id. at 422 (citation omitted), was unconstitutionally vague, because there was "nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence," id. at 428.

The State responds first, that the language of the Tennessee HAC aggravator, as further defined and limited by the trial court, [*26] is not the language found to be vague in Godfrey, and second, that the HAC aggravator in Cone's case was not "contrary to . . . clearly established" U.S. Supreme Court precedent as it stood at the time of Cone's direct appeal. That precedent, the State argues, was established in Proffitt v. Florida, 428 U.S. 242, 49 L. Ed. 2d 913, 96 S. Ct. 2960 (1976), decided eight years before Cone's conviction became final, in which the Court held that Florida's HAC aggravator was not unconstitutionally vague in light of the Florida courts' narrowing construction that the term "heinous, atrocious, or cruel" means a "'conscienceless or pitiless crime which is unnecessarily torturous to the victim.'" Id. at 255-56 (citations omitted). This narrowing language is the identical language the Tennessee Supreme Court used in narrowing Tennessee's HAC aggravator in State v. Dicks, 615 S.W.2d 126, 132 (Tenn. 1981), a case decided three years before the court's "implicit review" of Cone's case. Moreover, the State argues, it must be presumed that the Tennessee Supreme Court evaluated the Cone jury's reliance upon the HAC aggravator using the same narrowing [*27] construction adopted in Dicks. The State also reminds us that the U.S. Supreme Court held in Williams, 529 U.S. 362, 146 L. Ed. 2d 389, 120 S. Ct. 1495, that the state court's decision must be evaluated against the "clearly established" Supreme Court precedent at the time the petitioner's conviction became final. Id. at 380.

One thing is clear: No Supreme Court case has addressed the precise language at issue in this case. As we will show, the cases decided after Cone's conviction became final indicate clearly that the language of the HAC aggravator the jurors used to sentence Cone to death-"especially heinous, atrocious, or cruel in that it involved torture or depravity of mind"-is unconstitutionally vague. Normally, post-Cone decisions would be immaterial, but, as will be seen, the Supreme Court's fairly recent application of its doctrine of the "non-retroactivity" of new constitutional rules, in the context of an Eighth Amendment vagueness challenge to a death penalty instruction, makes several post-Cone Supreme Court decisions not only material, but controlling.

In 1988, in Maynard v. Cartwright, 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853, [*28] a death penalty case from Oklahoma, the Supreme Court explicitly relied upon Godfrey (the "outrageously or wantonly vile, horrible or inhuman" aggravator) to hold that Oklahoma's HAC aggravator was unconstitutionally vague, id. at 363-64, but implied that had Oklahoma's HAC aggravator been further limited by a "torture or serious physical abuse" instruction, it might have been constitutional, id. at 365. Nonetheless, two years later, in Shell v. Mississippi, 498 U.S. 1, 112 L. Ed. 2d 1, 111 S. Ct. 313 (1990) (per curiam), the Supreme Court announced that the "heinous, atrocious, or cruel" language, along with the same "limiting" definitions as were provided to the jury in Cone's case, was unconstitutional. Id. at 1. The HAC aggravator in Shell, however, did not have the "torture or depravity" qualifier that is attached to the HAC aggravator in Cone's case. In Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002), the Court stated, "there is no serious argument that Arizona's 'especially [*29] heinous, cruel or depraved' aggravating factor is not facially vague." Id. at 654.

Despite the confusion resulting from these cases (or perhaps because of it), the Supreme Court, in Stringer v. Black, 503 U.S. 222, 117 L. Ed. 2d 367, 112 S. Ct. 1130 (1992), came at the subject from a different angle. It addressed the "new rule" non-retroactivity doctrine as respects Godfrey, the pre-Cone decision, and Maynard, the post-Cone decision.

The language [in Maynard ("especially heinous, atrocious or cruel")] gave no more guidance than did the statute in Godfrey [("outrageously or wantonly vile, horrible or inhuman")]. . . .

. . . Godfrey and Maynard did indeed involve somewhat different language. But it would be a mistake to conclude that the vagueness ruling of Godfrey was limited to the precise language before us in that case. In applying Godfrey to the language before us in Maynard, we did not "break new ground."

Id. at 228-29 (quoting Butler v. McKellar, 494 U.S. 407, 412, 108 L. Ed. 2d 347, 110 S. Ct. 1212 (1990)). The "break new ground" terminology refers to the rule [*30] announced in Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), that if a decision announces a "new" constitutional rule, it is not to be applied retroactively to convictions that have already become final when the new decision is announced, subject to two narrow exceptions not applicable here. A "new [constitutional] rule" is one that "breaks new ground" or imposes new obligations on the states or federal government. Id. at 301. "[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. (emphasis omitted).

Given this old rule/new rule definition, the language of Stringer, that Maynard did not "break new ground," strongly suggests that the Supreme Court considers Godfrey to have clearly established the unconstitutionality of the HAC aggravator as early as 1980. Although Stringer dealt with a pre-AEDPA retroactivity issue, the Supreme Court in Williams v. Taylor, 529 U.S. 362, 146 L. Ed. 2d 389, 120 S. Ct. 1495, explained that the "clearly established law" requirement codified the old rule/new rule doctrine of non-retroactivity that prevailed [*31] before AEDPA. Id. at 379-80, 412; see also Harris v. Stovall, 212 F.3d 940, 944 (6th Cir. 2000). Indeed, the Court cited Stringer as an example of the old rule/new rule doctrine codified by AEDPA's "clearly established law" requirement. Williams, 529 U.S. at 412.

Although none of these Supreme Court decisions is "on all fours" with the instruction in Cone's case, in the final analysis, Stringer's statement that Maynard's invalidation of Oklahoma's HAC aggravator was an "old rule" dictated by Godfrey, points ineluctably to the conclusion that Godfrey represents a "clearly established" Supreme Court precedent dictating that Tennessee's HAC aggravator is unconstitutionally vague. Although it is true that the HAC aggravator in Cone's case contained the additional words "in that it involved torture or depravity of mind," all of those words except "torture" have been held to be too vague, on the basis of Godfrey. Since Maynard was dictated by Godfrey, it is difficult to imagine how any of the other cases addressing very minor variations on the instruction in Maynard and Cone would not also [*32] be dictated by Godfrey.

There remains, of course, the question whether the Tennessee Supreme Court's narrowing construction of Tennessee's HAC aggravator, announced in 1981 in Dicks, 615 S.W.2d at 132, that Tennessee's HAC aggravator should be read as meaning "conscienceless or pitiless crime which is unnecessarily torturous to the victim," the identical language that was approved in Proffitt, 428 U.S. at 255, "saves" the HAC aggravator in Cone's case.

The State argues that if we are to indulge the fiction, discussed earlier, that the Tennessee Supreme Court "implicitly reviewed" Cone's Eighth Amendment vagueness "challenge" to the HAC aggravator, a challenge Cone did not explicitly raise, we should also indulge the fiction that the court applied the "pitiless crime" narrowing construction it adopted for Tennessee's HAC aggravator three years earlier in Dicks, 615 S.W.2d at 132. Although this "implicit narrowing construction" argument would provide a nice symmetry to the earlier "implicit review" argument, we think the two, on close consideration, are actually asymmetrical. Here's why: The Tennessee court explicitly reviewed [*33] whether the HAC aggravator the jury found was supported by sufficient evidence, but in doing so, it did not apply, or even mention, any narrowing interpretation or cite to Dicks. Instead, the court simply, but explicitly, satisfied itself that the labels "heinous, atrocious, or cruel," without more, applied to Cone's crime. State v. Cone, 665 S.W.2d at 94-95.

Therefore, we conclude that the Tennessee Supreme Court's "implicit decision," upon mandatory review of Cone's death sentence, was that the HAC aggravator relied upon by Cone's jury in imposing the death sentence was not arbitrary and, consequently, not unconstitutionally vague. We hold that this decision by the Tennessee Supreme Court was contrary to clearly established U.S. Supreme Court precedent as announced in Maynard and Shell, and made applicable to Cone's case via the rule of retroactivity explained in Stringer.

CAPITAL CASES (Favorable Disposition)

Crews v. Horn, 2004 U.S. App. LEXIS 4205 (3rd Cir 3/4/2004) "[D]istrict courts have the discretion to stay mixed habeas corpus petitions but that, as in this case, when an outright dismissal could jeopardize the timeliness of a collateral attack, a stay is the only appropriate course of action."

New York v. Mateo, 2004 N.Y. LEXIS 263 (NY 2/24/2004) (dissent) Appellant's sentence vacated "under what [has been previously] held to be an unconstitutional two-tiered penalty scheme" that permitted those who plead guilty ineligible for the death penalty. A stunningly horrid decision on the guilt phase admission of unrelated crimes to which the Appellant had confessed and had "opened the door" to by arguing the reliability of his confession in the instant case.

Hammon v. Oklahoma, 2004 Okla. Crim. App. LEXIS 16;2004 OK CR 13 (Okla. Crim. App. 2/26/2004) Trial court's finding of mental retardation and reduction of sentence to life without the possibility of parole affirmed.

Oregon v. Guzek, 2004 Ore. LEXIS 137 (Ore. 3/4/2004) On state's concession of error, death sentence vacated as "the trial court erred in failing to instruct the jury on the "true-life" sentencing option and that this court again must vacate the sentence of death."

Ex Parte West, 2004 Ala. LEXIS 50 (Ala 3/5/2004) Lower state courts improperly held that West filed his postconviction motion out of time.

Borden v. Alabama, 2004 Ala. Crim. App. LEXIS 48 (Ala. Crim. App. 2/27/2004) Remand ordered for evidentiary hearing on mental retardation claims.

Hardy v. Alabama, 2004 Ala. Crim. App. LEXIS 43 (Ala. Crim. App. 2/27/2004) Postconviction trial court improperly held that the Hardy filed his Rule 32 petition out of time.

Tarver v. Alabama, 2004 Ala. Crim. App. LEXIS 27 (Ala. Crim. App. 2/27/2004) Remand ordered so that the post-conviction trial court may address issues relating to trial counsel's failure to address in the penalty phase issues of alleged alcohol dependence and mental retardation, as well as to determine whether Tarver is, in fact, mentally retarded.. Other issues addressed include propriety of the recusal of the trial judge.

Yeomans v. Alabama, 2004 Ala. Crim. App. LEXIS 47 (Ala. Crim. App. 2/27/2004) Remand ordered to vacate duplicative capital murder convictions for the same course of conduct and so the trial court can enter further written orders relating to aggravating and mitigating factors.

CAPITAL CASES (Unfavorable Disposition)

Miller-El v. Dretke, 2004 U.S. App. LEXIS 3698 (5th Cir 2/26/2004) On remand from the Supreme Court, relief denied on Petitioner's Batson claim amid strong evidence of systemic discrimination against African-American veniremen.

Chandler v. Lee, 2004 U.S. App. LEXIS 4278 (4th Cir 3/5/2004) (unpub) Relief denied. Claims denied include: "(1) whether the prosecution knowingly allowed Wilson to testify falsely; (2) whether the prosecution withheld exculpatory evidence concerning Wilson’s testimony; (3) whether an actual conflict of interest adversely affected the performance of one of Chandler’s attorneys; and (4) whether the refusal to submit a particular mitigating circumstance to the jury violated Chandler’s constitutional rights."

Kincy v. Dretke, 2004 U.S. App. LEXIS 3515 (5th Cir 2/25/2004) (unpub) COA denied on issues including: "(1) whether he was denied due process and a fair trial because the trial court upheld a witness’s invocation of the privilege against self-incrimination; (2) whether he was denied due process because he has evidence of actual innocence; (3) whether he was denied due process because of the State’s suppression of impeachment evidence pertaining to witness John Byrom; (4) whether he was denied due process because the State presented materially false evidence through two witnesses; and (5) whether his appellate counsel provided constitutionally ineffective assistance by failing to raise as error a witness’s invocation of her privilege against self-incrimination."

Riley v. Dretke, 2004 U.S. App. LEXIS 4309 (5th Cir 3/5/2004) (unpub) Relief denied on claims of whether trial counsel was ineffective in failing to present evidence of mental retardation and the district court's denial of investigative funds.

Jones v. Luebbers, 2004 U.S. App. LEXIS 4040 (8th Cir 3/3/2004) Relief denied on claims that the "state trial judge who presided over his capital murder trial was biased and that his public defenders were ineffective due to their failure to secure the trial judge's recusal."

Webster v. Woodford, 2004 U.S. App. LEXIS 4268 (9th Cir 3/5/2004) Apellant's "due process rights were [not] denied by a judicial expansion of California's definition of death-qualifying special circumstances in violation of Bouie v. City of Columbia, 378 U.S. 347 (1964)."

Robbins v. Arkansas, 2004 Ark. LEXIS 130 (Ark 2/26/2004) Errors in penalty phase verdict sheet sentencing Robbins to death held harmless beyond a reasonable doubt.

Sealey v. Georgia, 2004 Ga. LEXIS 181 (Ga 3/1/2004) Relief denied on claims relating to qualification of grand jurors, under representation of Hispanics in the grand jury, the imputed disqualification of the prosecutor's office due to prior representation of the accused by an attorney in that office, voir dire, use of peremptory challenges, exclusion of polygraph evidence, presentation of felon in possession of a firearm during the guilt phase of the proceedings and not in a separate bifurcated proceeding, presentation of evidence of an unrelated credit card theft, and review of the sentence as required by statute.

South Carolina v. Moore, 2004 S.C. LEXIS 49 (SC 3/1/2004) Relief denied on whether counsel was improperly limited by the trial court in both guilt and penalty phase closings.

Martinez v. Texas, 2004 Tex. Crim. App. LEXIS 379 (Tex. Crim. App. 3/3/2004) State proceeded on two theories of capital murder, murder/robbery & murder/aggravated sexual assault. Relief denied on claims relating to sufficiency of the evidence as to both theories of the prosecution & that the jury was instructed that it need not be unanimous as which theory to accept as to capital murder as long as it was unanimous as to whether capital murder was committed.

Ex Parte Key, 2004 Ala. LEXIS 39 (Ala 3/5/2004) (dissent) Use of HAC aggravator affirmed. State supreme court holds that HAC can be applied in most cases where death is not instaneous and the victim clearly suffered.

Ex Parte McNabb, 2004 Ala. LEXIS 46 (Ala 3/5/2004) Relief denied on jury instructions relating to the weighing of mitigating and aggravating factors, unanimity requirement for at least one aggravator, and the charging of the jury at the start of the penalty phase.

Jenkins v. Alabama, 2004 Ala. Crim. App. LEXIS 30 (Ala. Crim. App. 2/27/2004) Relief denied on claims relating to: (1) the limited questioning of the venire during voir dire; (2) numerous detailed claims relating to ineffective assistance of counsel at trial and on appeal; (3) trial court's discounting of the appellant's testifying clinical expert on the abuse he suffered as a child; (4) "failing to disclose exculpatory evidence. Specifically, he argues that police failed to disclose that another individual had been arrested and detained for the murder and that the State also withheld evidence about Jenkins's background and character;" (5) trial court's finding of procedural default as to numerous claims; and (6) the postconviction trial court's adoption, in whole, of the state's proposed findings denying relief.

Tennessee v. Thomas, et. al., 2004 Tenn. Crim. App. LEXIS 185 (Tenn. Crim. App. 2/27/2004) Relief denied on claims relating to: "(1) the sufficiency of the evidence; (2) whether the trial court erred by denying various pre-trial motions; (3) whether the trial court erred by failing to continue the case after the events of September 11, 2001; (4) whether the trial court erred by excusing prospective juror Pannell for cause; (5) whether the trial court erred by admitting photographs of the victim; (6) whether the trial court erred by admitting items from Defendant's prior federal trial arising out of the robbery; (7) whether the trial court erred in restricting the Defendant's impeachment of Angela Jackson; (8) whether the trial court erred in failing to voir dire a prospective witness regarding her relationship with defense witness Russell Carpenter; (9) whether the trial court erred in sustaining an objection to the testimony of John Hibbler; (10) whether the trial court erred in permitting testimony regarding fingerprints despite stipulation; (11) whether the trial court erred in the admission of expert testimony; (12) whether the trial court erred by failing to charge lesser-included offenses of felony murder; (13) whether the trial court erred by failing to charge the jury with an accomplice instruction; (14) whether it was plain error for the State to refer to Thomas and Bond as "Greed and Evil" in opening statement and closing argument; (15) whether the trial court erred in permitting the State to argue that the jury had a job to find the Defendants guilty; (16) whether the trial court erred by not instructing on specific mitigating factors; (17) whether the trial court erred by permitting the State to cross-examine the Defendant's mother regarding disciplinary actions taken against the Defendant while in prison; (18) whether the verdict of the jury was against the weight of the evidence; (19) whether the indictment failed to charge a capital offense; (20) whether the death penalty violates international treaties ratified by the United States; (21) whether the Tennessee death penalty scheme is unconstitutional; and (22) whether the sentence is proportionate."

OTHER NOTABLE CASES

Pierce v. Gilchrist & Macy, 2004 U.S. App. LEXIS 3989 (10th Cir 3/2/2004) Motion to dismiss in wrongful conviction lawsuit properly denied by the district court.

FOCUS

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FROM AROUND THE WEB

The Death Penalty Information Center (Deathpenaltyinfo.org) notes:

INNOCENCE: Formerly Exonerated Death Row Inmate Now Cleared of All ChargesSteven Manning, a former Chicago police officer who was exonerated from Illinois' death row in 2000 but remained in a Missouri prison on another charge, has been freed after Missouri prosecutors dropped all charges against him. In January 2000, 7 years after he was sentenced to death in Illinois, a judge threw out Manning’s death sentence and conviction because the state used inadmissible testimony to secure his conviction. Cook County prosecutors later dismissed their case against Manning because the testimony of the remaining key witness in the case, Tommy Dye, was unreliable. Dye, a notorious jailhouse snitch, had a long history of lying under oath and of receiving benefits from prosecutors in exchange for testimony in cases. After Illinois prosecutors dropped their case, Manning challenged his Missouri kidnapping conviction. This charge was also based on unreliable informant testimony, most notably statements given by a kidnapping ringleader who later complained that the state failed to pay him the money they had promised for his testimony. The state also used the testimony of a questionable eyewitness who failed to accurately identify Manning during his first trial. “I’m not sure a kidnapping even occurred," said defense attorney Cynthia Short. "Not only do I think Steve was never involved, I don’t know it happened,” she said after the Missouri charges were dismissed in February 2004. Manning is now free and is suing two FBI agents for their role in his wrongful convictions. (Chicago Tribune, Feb. 27, 2004) See Innocence. There have been 113 death row inmates exonerated since 1973. Manning's reversal in Illinois led to a moratorium on all executions in that state that remains in place.

Kansas Study Concludes Death Penalty is Costly PolicyIn its review of death penalty expenses, the State of Kansas concluded that capital cases are 70% more expensive than comparable non-death penalty cases. The study counted death penalty case costs through to execution and found that the median death penalty case costs $1.26 million. Non-death penalty cases were counted through to the end of incarceration and were found to have a median cost of $740,000. For death penalty cases, the pre-trial and trial level expenses were the most expensive part, 49% of the total cost. The costs of appeals were 29% of the total expense, and the incarceration and execution costs accounted for the remaining 22%. In comparison to non-death penalty cases, the following findings were revealed:

• The investigation costs for death-sentence cases were about 3 times greater than for non-death cases.
• The trial costs for death cases were about 16 times greater than for non-death cases ($508,000 for death case; $32,000 for non-death case).
• The appeal costs for death cases were 21 times greater.
• The costs of carrying out an execution (including death row incarceration) were about half the costs of carrying out a non-death sentence in a comparable case.
• Trials involving a death sentence averaged 34 days, including jury selection; non-death trials averaged about 9 days.

(Performance Audit Report: Costs Incurred for Death Penalty Cases: A K-GOAL Audit of the Department of Corrections, December 2003) Read DPIC’s Summary of the Kansas Cost Report. See Costs.

NEW VOICES: Police Chief Says Death Penalty Is Unwise Use of Limited ResourcesWest Hartford Police Chief James Strillacci, president of the Connecticut Police Chiefs Association, has told state lawmakers that resources devoted to the death penalty would be better spent elsewhere. He noted, "It is a practical issue. We have a death penalty law on the books, but we haven't executed anyone since 1960, and it doesn't look like anyone will be executed. The process is long, labor intensive and expensive. Now, any money we've put into death penalty cases has really been wasted." Strillacci said death penalty funds would be more wisely spent on other aspects of the criminal justice system, such as forensics, DNA evidence collection and cataloguing, and other aspects of the criminal investigation process. He said that this reallocation of funds would result in the conviction of more criminals and the exoneration of more innocent people. (New Haven Register, February 29, 2004). See New Voices and Costs.

Dallas Morning News Calls for Death Penalty Moratorium in Texas

In response to the U.S. Supreme Court's recent reversal of Delma Banks' death sentence in Texas because of prosecutorial misconduct, the Dallas Morning News has called for a halt to executions while state officials review serious problems in the system:It's hard to imagine a clearer message. The U.S. Supreme Court's decision lifting Texas inmate Delma Banks' death sentence paints as bright a line as jurists paint. The governor, Texas legislators and law enforcement officials should absorb the ruling and change the state's ways.

The court's decision Tuesday said Texas prosecutors concealed information that could have helped Mr. Banks, who has been on death row for 23 years after being convicted of killing a 16-year-old. Informants got paid, testimony was coerced, and prosecutors cut deals. That kind of misconduct is bad. It's particularly bad when it almost leads to a man's execution.

The fact that public servants played fast and loose with the law should outrage the most ardent death-penalty advocates. It's noteworthy that former FBI Director William Sessions of San Antonio spoke out fervently against the shoddy way the state handled the case. So did a solid seven-member majority on the Supreme Court, which sent the case back to the lower courts.

Texas, of course, has had other Supreme Court reprimands about the way it administers the death penalty. The best answer is to suspend all of the state's executions until officials review all cases for various procedural errors. To cite one more example, Harris County got hit last year with a wave of criminal cases that called police lab work into question.

The state also needs to come up with a way to keep mentally retarded offenders from death row. The Supreme Court said no more of this horrible practice but left it to the states to screen the cases. So far, Texas hasn't figured out how.

Texas also has to open its clemency process. The Board of Pardons and Paroles largely conducts its meetings about granting clemency to inmates away from the public light. That approach - we know best, you don't - has gotten the state into trouble with its death penalty.

Plenty of trouble. The state needs to rethink its executions. A pause could help do that. Texas doesn't need any more Delma Banks-like embarrassments.

(Dallas Morning News, February 27, 2004) (emphasis added). See Supreme Court. See Editorials.

TWO MORE STATES BAN DEATH PENALTY FOR JUVENILES

Governors Mike Rounds of South Dakota and Dave Freudenthal of Wyoming have signed into state law bipartisan legislation banning the execution of those who were under the age of 18 at the time of their crimes. Of the 38 death penalty states, 19 forbid the death penalty for juveniles. The federal government also forbids the practice. Twelve additional states do not allow the death penalty at all. The U.S. Supreme Court will consider the constitutionality of the juvenile death penalty this fall when it hears arguments in Roper v. Simmons. (Associated Press, March 4, 2004, and U.S. Newswire NCADP Press Release, March 4, 2004) See DPIC's Roper v. Simmons page. See Juvenile Death Penalty.

NEW RESOURCES: Arbitrariness and Racial Disparities in Death Sentencing

In a recent study examining death sentencing trends around the country, researchers reported significant differences between the rates at which black defendants who kill white victims are sentenced to death, as compared to the rate at which black defendants who kill black victims are sentenced to death. In every one of the seven states for which data was available, blacks who kill whites were far more likely to receive a death sentence than blacks who killed blacks. Because the study used sentencing rates (e.g., the number of blacks sentenced to death out of the number of blacks who committed murder), the various rates can be legitimately compared. The numbers below indicate how many times greater the black defendant/white victim rate is compared to the black defendant/black victim rate in each state:

• Georgia 22 times larger
• Indiana 8 times larger
• Maryland 22 times larger
• Nevada 4 times larger
• Pennsylvania 3 times larger
• South Carolina 23 times larger
• Virginia 18 times larger
• Arizona 9 times larger (in Arizona, the sentencing rates compared minorities who killed whites to minorities who killed minorities).

J. Blume, T. Eisenberg, & M. Wells, "Explaining Death Row's Population and Racial Composition," 1 Journal of Empirical Legal Studies 165, 197 (Table 8) (2004).

NEW VOICES: North Carolina Attorney General Urges Open-File Policy, Calls Gell Case a "Travesty"North Carolina Attorney General Roy Cooper is calling on prosecutors to open their files to defense attorneys in first-degree murder cases to avoid wrongful convictions like that of former death row inmate Alan Gell, who was exonerated and freed in February. Cooper called Gell's first trial a "travesty" and stated that the prosecutors committed "inexcusable neglect" in their handling of the trial. "The original prosecutors in this case owe everyone an apology: the defendant, the victim's family, the community, and everybody in the state. An unfair trial occurred," Cooper said. Since Gell's first trial, the prosecutors, who are under investigation by the State Bar, have gone on to other jobs in the court system. (News & Observer, March 2, 2004) Gell's exoneration and Cooper's call for reform of the way first-degree murder trials are conducted comes as members of the North Carolina House of Representatives are considering an historic vote that could halt executions in this closely-watched Southern state. See New Voices and Innocence.

NEW RESOURCES: Experts Debate the Death Penalty

"Debating the Death Penalty: Should America Have Capital Punishment?," a new book edited by Hugo Bedau and Paul Cassell, brings together judges, lawyers, prosecutors and philosophers to debate the death penalty in a spirit of open inquiry and exchange. The book discusses issues such as deterrence, innocence, life in prison without parole, and race. In addition to the editors, those who have chapters in the book inlcude: Judge Alex Kozinski, Stephen Bright, Joshua Marquis, Bryan Stevenson, Professor Louis Pojman and former Governor George Ryan. (Oxford University Press, 2004). See Resources.

Wyoming Legislators Vote to Ban Juvenile Death Penalty

Wyoming legislators in both the House and Senate have passed a measure to ban the death penalty for those who are under 18 at the time of their crime, marking the second time in one week that a legislative body in the United States has passed a ban on capital punishment for juvenile offenders. The bill now goes to Wyoming Governor Dave Freudenthal for his signature to become law. (Feb. 27, 2004). Earlier in the week, South Dakota's legislature voted to outlaw the practice (read more). The U.S. Supreme Court will consider the constitutionality of the juvenile death penalty this fall when it hears arguments in Roper v. Simmons. See DPIC's Roper v. Simmons page. See Juvenile Death Penalty.

Oklahoma Adds to A Series of Execution Stays

Shortly before the scheduled 6 p.m. execution of Hung Thanh Le, a Vietnamese foreign national on Oklahoma's death row, Governor Brad Henry granted a stay of execution in deference to Vietnamese officials who requested more time to review Le's file. Le, who suffers from post-traumatic stress disorder resulting from fleeing Vietnam, was scheduled to be executed despite a unanimous recommendation for clemency from the Oklahoma Pardon and Parole Board. More than 1,700 members of Oklahoma City's Vietnamese community signed a petition calling for clemency. Governor Henry has only delayed the execution and set a new date of March 23. (The Oklahoman, February 27, 2004). In North Carolina, the execution of George Page set for Friday, Feb. 27, was also stayed in light of his challenge to the lethal injection procedure used in that state. In Texas, the April execution of juvenile offender Anzel Jones was stayed by Justice Antonin Scalia as the Supreme Court prepares to review the issue of the death penalty for those under the age of 18. See Foreign Nationals and Clemency.

NEW VOICES: Urban League President Says Death Penalty is "Cruel and Inhuman"In a recent column, Marc H. Morial, the current President of the National Urban League and former President of the U.S. Conference of Mayors, praised recent efforts to halt executions while questions about innocence and fairness are addressed by legislators. Morial noted:

There are growing calls for moratoria on executions, a growing reluctance among juries to levy the death penalty, efforts to insure that defendants in capital cases, who are most often poor, are represented by good attorneys, and even legislative attempts at the state and federal levels to fix the flaws in various parts of the steps of death-penalty cases.

These efforts are worthwhile--in our view, both for their practicality and for their underscoring the moral arguments against the death penalty: It is a practice that cannot be fixed by the application of "practical" measures. It is inherently cruel and inhuman punishment, in no small measure because it is layered through and through with America's legacy of class and racial oppression.

(MaximsNews.com, February 25, 2004)(emphasis added) See New Voices.

South Dakota Legislators Vote to Ban Death Penalty for Juveniles

Legislation banning capital punishment for crimes committed by those younger than 18 has passed both the South Dakota House and Senate. The bill will now go to Governor Mike Rounds for signature into law. Republican Representative Hal Wick of Sioux Falls supported the bipartisan measure, stating, "I do have concerns about heinous crimes, but I don't think it's our place to destroy or forget the sanctity of life. Violent responses by the state beget more violence. The state must lead by example. Instead of encouraging a culture of death by killing criminals, we must seek punishment for crimes that respects the dignity of human life and at the same time serves human justice." Internationally, the U.S. is one of only a handful of countries that allow the execution of juvenile offenders. (Argus Leader, February 25, 2004) Nationally, the federal government and 17 of the 38 states that have the death penalty ban the execution of the juvenile offenders. Rounds' signature would make South Dakota the 18th death penalty state to abandon the practice. The U.S. Supreme Court will consider the constitutionality of the juvenile death penalty this fall when it hears arguments in Roper v. Simmons. See DPIC's Roper v. Simmons page. See Juvenile Death Penalty.

NEW VOICES: Connecticut Lags Behind in Death Penalty Reforms

The Chair of Connecticut's Judiciary Committee has called for enactment of death penalty reforms to protect against wrongful convictions. Of the six reforms recommended after a 13-month special commission on Connecticut's death penalty, only one has been enacted. Members of the commission noted, "Experiences in other states throughout the country suggest that Connecticut cannot be complacent and 'best practices' should be the watchword." Among the recommendations are video taping of interrogations, a blind and sequential witness ID process to reduce false identifications, pre-trial hearings to evaluate the validity of jail house snitch testimony, improved access to DNA testing, and an "open file" policy for prosecutors in capital cases. Rep. Michael Lawlor, Judiciary Co-chair, said that there have been no executions in Connecticut "because nobody really wants to do it." (New Haven Advocate, January 15, 2004) See New Voices and Recent Legislative Activity.

Supreme Court Overturns Texas Death Sentence

In a 7-2 decision in Banks v. Dretke, the Supreme Court overturned the death sentence of Delma Banks Jr., concluding that he was denied a fair trial because prosecutors in Texas failed to disclose key information. Last year, Banks was just minutes from his scheduled execution in Texas when the Supreme Court intervened. Today's decision remands the case back to a lower court so that new evidence may be considered. Read DPIC's Press Release. Also, Read the opinion.NEW VOICES: Kansas Supreme Court Justice Reflects: "Do I Have It Right?"In a report filed by the Kansas Judicial Council Death Penalty Advisory Committee, retired Kansas Supreme Court Justice Fred N. Six noted that capital punishment cases pose immense burdens on judges. He stated:

Always in the consciousness of that justice is the question, "do I have it right?" A wrong call is irreversible because "death is different." The "do I have it right" question travels with you. You carry it with you during the workday, deliberations at case conference, your commute to and from work, before retiring at night, and on weekends. The question shadows you. However, normal shadows disappear at sundown, the "do I have it right" does not. You also carry a brief case filled with death case material home at night and on weekends. This brief case becomes your "constant companion" until the death case opinion is filed.

(Report of the Judicial Council Death Penalty Advisory Committee, January 29, 2004) See New Voices.